End User License Agreement

Portalarium End User License Agreement 1.6 released February 1, 2017
PLEASE READ THIS END USER LICENSE AGREEMENT (“EULA” OR “AGREEMENT“) CAREFULLY. THIS SOFTWARE IS LICENSED, NOT SOLD. BY CLICKING THE “ACCEPT” BUTTON AT THE END OF THE AGREEMENT BELOW, OR BY PARTICIPATING IN THE GAME, OR BY USING THE www.shroudoftheavatar.com WEBSITE AND RELATED WEBPAGES (THE “WEBSITE”), YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, CLICK ON THE BUTTON THAT INDICATES THAT YOU DO NOT AGREE TO ACCEPT THE TERMS OF THIS AGREEMENT (IF APPLICABLE) AND DO NOT CONTINUE THE USE OF THIS SOFTWARE OR PARTICIPATE IN THE GAME OR USE THE WEBSITE.
This software program, and any files that are delivered to you by PORTALARIUM via on-line transmission or otherwise to “patch”, update, or otherwise modify the software program (the “Game Client”), as well as any printed materials and any online or electronic documentation (the “Manual”), and any and all copies and derivative works of the Game Client and Manual (collectively, with the “Game Client” and the Manual, the “Game Material”) for the game Shroud of the Avatar and related modules (the “Game”) is the copyrighted work of Portalarium, Inc., or any of its subsidiaries and affiliates, and their licensors (collectively, “PORTALARIUM”). Any and all uses of the Game are governed by the following (herein, collectively, “PORTALARIUM Terms”) (i) the terms of this EULA, (ii) the Terms of Service available at www.shroudoftheavatar.com/?page_id=47871, (iii) PORTALARIUM’s Privacy Policy available at www.portalarium.com/index.php%3Foption=com_content&view=article&id=114&Itemid=498.html, as any of the foregoing may be amended from time to time, together with any posted rules or instructions regarding a particular activity, poll, or other offering. The Terms of Service and the PORTALARIUM Privacy Policy are incorporated herein by this reference. The Game is distributed solely for use by authorized end users according to the PORTALARIUM Terms. Any use, reproduction, modification or distribution of the Game not expressly authorized by the terms of this EULA is expressly prohibited.
I. Limited Use License
Subject to your agreement and continuing compliance with the PORTALARIUM Terms, PORTALARIUM hereby grants to you a limited, personal, nonexclusive, nontransferable, non-assignable and fully revocable license to (a) install the Game Client on one or more computers owned by you or under your legitimate control, and (b) use the Game Client in conjunction with the online service and website www.shroudoftheavatar.com (hereafter the “Website”) for your non-commercial entertainment purposes only. You must accept the Terms of Service on the Website, or, if applicable, on the next following screen to use the Game Client and to play the Game.
You agree that you will not, under any circumstances
• In whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code from, modify, disassemble, decompile, or create derivative works based on the Game Material; provided, however, that you may make copies of the Game Client and the Manuals for personal purposes only;
• Use cheats, automation software (bots), hacks, mods or any other unauthorized third-party software designed to modify the Game experience;
• Exploit the Game or any of its parts, including without limitation the Game Client, for any commercial purpose, including without limitation (a) use at a cyber cafe, computer gaming center or any other location-based site; (b) for gathering in-game virtual, items or resources for sale outside the Game; or (c) performing in-game services in exchange for payment outside the Game, e.g., power-leveling; or (d) participation in the trade of items gained through the means listed above, or any other means violating this agreement.
• Use any unauthorized third-party software that intercepts, “mines”, or otherwise collects information from or through the Game or the Website, including without limitation any software that reads areas of RAM used by the Game to store information about a character or the game environment; provided, however, that PORTALARIUM may, at its sole and absolute discretion, allow the use of certain third party user interfaces;
• Modify or cause to be modified any files that are a part of the Game Client in any way not expressly authorized by PORTALARIUM;
• intercept, emulate or redirect the communication protocols used by PORTALARIUM in any way, for any purpose, including without limitation unauthorized play over the internet, network play, or as part of content aggregation networks;
• Facilitate, create or maintain any unauthorized connection to the Game or the Website, including without limitation (a) any connection to any unauthorized server that emulates, or attempts to emulate, the Website; and (b) any connection using programs or tools not expressly approved by PORTALARIUM;
• Sell, grant a security interest in or transfer reproductions of the Game to other parties in any way not expressly authorized herein, or rent, lease or license the Game to others.
II. PORTALARIUM Ownership
“Content” as used herein includes (1) software, software updates or patches, or other utilities and tools from PORTALARIUM or its licensors (“PORTALARIUM Software”) and (2) other software, technology, text and audio visual material, the design and appearance of the Website. The foregoing includes, without limitation, computer code, titles, objects, artifacts, characters, player character names, locations, location names, stories, story lines, dialog, catch phrases, artwork, graphics, structural or landscape designs, animations, sounds, musical compositions and recordings, audio-visual effects, character likenesses, user Accounts , and methods of operation. Content is provided by PORTALARIUM and its licensors, and may also be contributed as User Content (see Section V.D below) by you or third parties, including other users of PORTALARIUM Services.
Content on PORTALARIUM Services is owned by PORTALARIUM or PORTALARIUM’s third party licensors and is protected by US and International copyright, trade dress, patent, and trademark laws, international conventions, and other laws protecting intellectual property and related proprietary rights. You may not copy or download any Content from a PORTALARIUM Service unless our terms expressly authorize you to do so. You agree not to remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to Content. You may not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of Content. PORTALARIUM reserves all rights in PORTALARIUM owned and licensed Content that are not expressly granted to you in PORTALARIUM Terms. You acknowledge that PORTALARIUM and/or third-party content providers remain the owners of all materials posted on the Website and in the Game, and that you do not acquire any of those ownership rights by downloading copyrighted materials.
PORTALARIUM reserves the right to use owned Content, including but not limited to, player character names, likenesses, and character data, for any purposes, including but not limited to, promotional, advertising, and marketing material.
Making unauthorized copies of Content found on PORTALARIUM Services may result in the termination of your Account(s), prohibition on use of PORTALARIUM Services, and further legal action. Content owners may take criminal or civil action against you for unauthorized use of intellectual property. You agree to indemnify and hold harmless PORTALARIUM from any unauthorized or illegal conduct by you, or through the use of your Account, on PORTALARIUM Services.
III. Patches and Updates
IMPORTANT: PORTALARIUM MAY FIND IT NECESSARY TO MAKE UPDATES, OR PATCHES TO THE GAME CLIENT, OR RESET CERTAIN PARAMETERS TO BALANCE GAME PLAY AND USAGE OF PORTALARIUM SERVICES. THESE UPDATES OR “RESETS” MAY CAUSE YOU SETBACKS WITHIN THE GAME AND MAY AFFECT CHARACTERS, GAMES, GROUPS OR OTHER ENTITLEMENTS UNDER YOUR CONTROL. PORTALARIUM RESERVES THE RIGHT TO MAKE THESE UPDATES AND IS NOT LIABLE TO YOU FOR THESE CHANGES.
IV. Duration of Online Services
Parts of this Game are an online game that must be played over the Internet through the Launcher as provided by PORTALARIUM. You understand and agree that the Launcher is provided by PORTALARIUM at its discretion and may be terminated or otherwise discontinued by PORTALARIUM pursuant to the Terms of Service.
V. Consent to Monitor
When you play the Game, or participate in any other PORTALARIUM Service, including the communication features on the Website, your IP address (the Internet protocol address from which you access any of the above) may be stored in our records. When the Game, or any element or module thereof, is updated or “patched,” our patch routine may check your computer to see that you have the most recent version of game-specific files; when you communicate within the Game or any communication feature in the Game or on the Website (e.g. live chat, instant message services and the like), even “privately” to another person, you do so with the understanding that those communications go through our servers, can be monitored by us. Accordingly, you have no expectation of privacy in any of those communications and, accordingly, you expressly consent to monitoring of communications that you send and receive. You may view the PORTALARIUM Privacy Policy at www.portalarium.com/index.php%3Foption=com_content&view=article&id=114&Itemid=498.html.
You agree that you are responsible for the content of all communications associated with your account. In the event of unacceptable content within such communications, you understand that PORTALARIUM may exercise its rights to remove said content and possibly initiate further action. Inappropriate language, inflammatory or combative behavior, personal attacks, threats of litigation, adult content, privacy violations, spam, and solicitations are some of the reasons that can be cause for content moderation or further action. You understand that the application of PORTALARIUM’s right to take action against these communications are at the discretion of PORTALARIUM management, employees, and moderators. In extraordinary cases permanent actions against the user’s account may be instituted. Any such permanent actions are reviewed by PORTALARIUM management.
You agree that we may communicate with you via telephone, email and any similar technology for any purpose relating to the Game, and any PORTALARIUM Service or PORTALARIUM Software which may in the future be provided by us or on our behalf. You expressly permit PORTALARIUM to upload CPU, operating system, video card, sound card and memory information from your computer to analyze and optimize your Game experience, improve and maintain the Game and/or provide you with customer service. In the event that the Game detects an unauthorized third party program, (a) the Game may communicate information back to us, including without limitation your Account username, details about the unauthorized third party program detected and the activities or functions performed thereby, and/or (b) we may exercise any or all of its rights and remedies under the PORTALARIUM Terms without prior notice to the user(s) linked to such unauthorized third party program.
VI. Disclaimers & Indemnification
A. Limitations on Warranty & Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF THE GAME, THE WEBSITE, OR ANY OTHER PORTALARIUM SERVICES, PORTALARIUM SOFTWARE, AND THE INTERNET IS AT YOUR SOLE RISK. PORTALARIUM SERVICES, PORTALARIUM SOFTWARE, PORTALARIUM’S PRODUCTS AND THIRD-PARTY SERVICES AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES MAY NOT BE EXCLUDED BY LAW. PORTALARIUM PROVIDES PORTALARIUM SERVICES ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT WARRANT MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT YOU WILL BE ABLE TO ACCESS OR USE PORTALARIUM SERVICES AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT PORTALARIUM WILL HAVE ADEQUATE CAPACITY FOR PORTALARIUM SERVICES AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA. USE OF THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ALL COMMUNICATION FEATURES OF THE WEBSITE, IS AT YOUR SOLE RISK
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH PORTALARIUM OR ITS LICENSORS IS TO STOP USING PORTALARIUM SERVICES, AND TO CANCEL YOUR PORTALARIUM ACCOUNT. YOU ACKNOWLEDGE AND AGREE THAT PORTALARIUM, ITS LICENSORS AND AFFILIATES ARE NOT LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON ANY PORTALARIUM SERVICES OR USE OF PORTALARIUM SOFTWARE. IN NO CASE SHALL PORTALARIUM OR ITS LICENSORS, AFFILIATES’, EMPLOYEES’, OFFICERS’, OR DIRECTORS’ (COLLECTIVELY, “PORTALARIUM AFFILIATES“) LIABILITY TO YOU EXCEED THE AMOUNT THAT YOU PAID TO PORTALARIUM FOR PORTALARIUM SERVICES. IN NO CASE SHALL PORTALARIUM OR PORTALARIUM AFFILIATES BE LIABLE FOR DIRECT, GENERAL, INCIDENTAL, SPECIAL. OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFIT OR REVENUES, ARISING FROM YOUR USE OF PORTALARIUM SERVICES, PORTALARIUM SOFTWARE, THE INTERNET OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF PORTALARIUM SERVICES OR ACCOUNTS. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, PORTALARIUM’S AND PORTALARIUM AFFILIATES’ LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. PORTALARIUM DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD PARTY PRODUCT OR SERVICE OFFERED THROUGH PORTALARIUM AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
B. Indemnification
Upon PORTALARIUM’s request, you agree to defend, indemnify and hold harmless PORTALARIUM and its affiliates, employees, contractors, officers, directors, vendors, and content providers from all liabilities, claims and expenses, including attorneys’ fees, that arise from a breach of these Terms of Service, or any other PORTALARIUM Terms, for which you are responsible or in connection with your distribution of any Content on or through PORTALARIUM Services. Without limiting the generality of the foregoing, you agree to indemnify and hold PORTALARIUM harmless for any improper or illegal use of your Account, including the illegal or improper use of your Account by someone to whom you have given permission to use your Account. You agree that you will be personally responsible for your use of PORTALARIUM Services and for all of your communication and activity on PORTALARIUM Services, including any User Content you contribute, and that you will indemnify and hold harmless PORTALARIUM, its affiliates, employees, officers, and directors from any liability or damages arising from your conduct on PORTALARIUM Services, including any User Content that you contribute.
PORTALARIUM reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, you shall have no further obligation to provide indemnification to PORTALARIUM in that matter.
VII. Disputes & Binding Arbitration
A. Equitable Remedies
You hereby acknowledge and agree that PORTALARIUM would suffer irreparable harm if this EULA or any of the PORTALARIUM Terms were not specifically enforced. Consequently, in addition to such monetary and other relief as may be recoverable at law, you agree that PORTALARIUM shall be entitled to specific performance or other injunctive relief, without bond, other security, or proof of damages, as remedy for any breach or threatened breach of this EULA or any other PORTALARIUM Terms. Additionally, in the event any legal or administrative action or proceeding is brought by either party in connection with this EULA or the PORTALARIUM Terms and consistent with the terms of this Section, the prevailing party in such action or proceeding shall be entitled to recover from the other party all the costs, attorneys’ fees and other expenses incurred by such prevailing party as the result of the action or proceeding.
B. Informal Negotiations
To expedite resolution and control the cost of any dispute, controversy or claim related to this EULA or any other PORTALARIUM Terms (“Dispute”), you and PORTALARIUM agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least 30 days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. PORTALARIUM will send its notice to your billing address (if provided) and email you a copy to the email address you have provided to us. You agree to send your notice to PORTALARIUM, 3410 Far West Boulevard, Suite 275 Austin, TX 78731, Attn: Legal Department with a copy via email to support@portalarium.com.
C. Binding Arbitration
If you and PORTALARIUM are unable to resolve a Dispute through informal negotiations, either you or PORTALARIUM may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND AND HEREBY AGREE THAT YOU HEREBY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, PORTALARIUM will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this EULA, you and PORTALARIUM may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
D. Restrictions on Dispute Proceedings
You and PORTALARIUM agree that any arbitration shall be limited to the Dispute between PORTALARIUM and you individually. To the fullest extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
E. Location
Any arbitration shall be initiated in the County of Travis, State of Texas, United States of America. Any Dispute not subject to arbitration, or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within the County of Travis, State of Texas, United States of America, and you and PORTALARIUM agree to submit to the personal jurisdiction of that court. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
VIII. Termination
This EULA (and all subsequent modifications, if any) shall remain effective until terminated. Both you and PORTALARIUM may terminate this EULA at any time for any reason or for no reason. Termination by PORTALARIUM will be effective upon notice to you, termination or deletion of your Account, or its decision to permanently discontinue offering and/or supporting the Game, which it may do at any time in its sole discretion. You may terminate this EULA (and, consequently, your Account, at any time by notifying PORTALARIUM at support@portalarium.com. Upon termination of this Agreement, your right to use the PORTALARIUM Services shall immediately cease. The following provisions shall survive any termination of this Agreement: Sections IV; V.A, B, D, and E; VII. , VIII, and X.
IX. General Terms
A. Remedies. You agree that this EULA are not intended to confer and do not confer any rights or remedies upon any person other than the parties to this EULA. You also understand and agree that this EULA, the Terms of Service, the PORTALARIUM Privacy Policy, and any other PORTALARIUM Terms, including PORTALARIUM ‘s enforcement thereof, are not intended to confer, and do not confer, any rights or remedies upon any person.
B. Severability. If any part of this EULA or the PORTALARIUM Terms is held invalid or unenforceable, that portion shall be interpreted in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of PORTALARIUM, and the remaining portions shall remain in full force and effect.
C. Waiver. The failure of PORTALARIUM to exercise or enforce any right or provision of this EULA or any PORTALARIUM Terms will not constitute a waiver of such right or provision, any such waiver being effective only if in a writing signed by PORTALARIUM.
D. Force Majeure. PORTALARIUM shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of PORTALARIUM, including, without limitation, any failure to perform hereunder due to unforeseen circumstances or cause beyond PORTALARIUM’s control such as acts of god, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
F. Governing Law. The laws of Texas, excluding its conflicts-of-law rules, govern this EULA, any other PORTALARIUM Terms, and your Account(s); and (ii) you expressly agree that exclusive jurisdiction for any claim or dispute with PORTALARIUM or relating in any way to this EULA, any other PORTALARIUM Terms, your Account(s), or your use of any PORTALARIUM Services resides in the Courts of the State of Texas, and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of the State of Texas in connection with any such dispute including any claim involving PORTALARIUM or its affiliates, employees, contractors, officers, directors, vendors and content providers. As noted in the Terms of Service, your conduct may also be subject to other local, state, national, and international laws.
G) Entire Agreement. This EULA, the Terms of Service, the PORTALARIUM Privacy Policy, and any other PORTALARIUM Terms constitute the entire agreement between you and PORTALARIUM relating to your rights and obligations in the use of PORTALARIUM Services. If there is any conflict between this EULA, the Terms of Service, the PORTALARIUM Privacy Policy, and any other PORTALARIUM Terms, PORTALARIUM shall resolve the conflict in its sole discretion.

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